ELLSWORTH — A federal appeals court in Boston on Tuesday reinstated the closure of 967 square miles of offshore fishing grounds located about 30 miles off the Maine coast. The seasonal closure, issued as part of federal rules to protect endangered right whales, had been temporarily suspended by a U.S. District Court judge right before the closure was to begin last month.
“The district court misapprehended the record and overstepped its role in rejecting the judgments of the agency that Congress has charged with protecting endangered marine mammals,” wrote Circuit Judge William Kayatta in the Nov. 16 appeals court decision. “And, while there are serious stakes on both sides, Congress has placed its thumb on the scale for the whales.”
It is unclear exactly when lobstermen must have their traps out of the water. The ruling calls for “the prompt removal of the banned gear from the LMA-1 restricted area.” The news has lobstermen and state officials reeling.
“This industry is suffering from whiplash, trying to change plans based on these rapidly evolving court decisions,” said Maine Department of Marine Resources Commissioner Patrick Keliher. “Moving gear around 30 miles offshore at this time of the year also poses a serious safety risk for fishermen. Fishermen’s lives are at stake and NOAA and the courts have an obligation to take fisherman safety into concern when they make these decisions.”
DMR officials say they will confirm the timing of the closure and get word out about the details to the fishing industry.
Federal officials, including the National Marine Fisheries Service (NMFS), had sought relief from the lower court’s ruling blocking the closure. The appeals court granted a stay of the district court order so that the seasonal closure can go into effect while the appeal proceeds.
Earlier this year, the NMFS issued a rule closing, from October to January, the restricted area to lobstering with vertical lines. The goal was to lessen the risk that a whale might become entangled in the ropes connecting lobster traps on the sea floor to buoys on the surface.
“Prior to the closure going into effect, several individuals and an organization affected by the closure joined as plaintiffs and asked the district court to postpone the enforcement of the new rule until that court could finally decide whether the new rule is lawful,” according to the decision. “The plaintiffs’ preliminary request required the district court to predict how likely it is to find the new rule unlawful at the end of the case and to consider now what harms might result in the interim should an injunction either be granted or denied. Agreeing with the plaintiffs, the district court put the new rule on ice.”
The Maine Lobstering Union and harvesters filed suit Sept. 27, claiming that “the closure of the restricted area was arbitrary and capricious.”
U.S. District Court Judge Lance Walker granted a temporary restraining order in mid-October. In his 28-page decision, Judge Walker said the substantial closure was “based on what appears to be a markedly thin statistical modeling methodology.” He wrote that it was “troublesome” that the agency had departed from its practice of using “concrete evidence” to justify closures.
The Nov. 16 U.S. Court of Appeals decision reinstating the closure states that the Endangered Species Act and Marine Mammal Protection Act demand federal officials take swift action to protect endangered whales.
Plaintiffs had taken aim at the scientific data used to support the closure, but the ruling rebuked some of those claims.
“Scientists regularly use models to understand complex interactions and predict likely future occurrences (like, for example, the weather in two days),” the ruling stated. “Thus, the Agency did everything it was supposed to do when using a model: It relied on the best evidence it had available and updated the inputs as new information emerged.”
While acknowledging financial harm caused by the closure, the decision continues “we find that leaving the injunction in place during the course of this appeal will likely cause irreparable harm in the form of preventing a federal agency from undertaking its congressionally assigned task of assuring the right whales are protected from a critical risk of death.”
Governor Janet Mills expressed frustration with the decision.
“This is a deeply disappointing result. This sudden closure will cause significant economic hardship for Maine’s lobster industry, will cost hundreds of fishermen millions of dollars, and will have a profound impact on businesses that rely on landings during the lucrative late fall and winter months,” she said in a statement. “We will continue to do all we can in the coming weeks and months to defend Maine lobstermen.”